[Manila Principles] Canada notice-to-notice how to resolve issues around the information to be included

Jyoti Panday jyoti at cis-india.org
Sat Mar 21 21:04:32 PDT 2015

Dear All,

Some considerations for the notice and notice system in the context of
Canadian regime and RightsCorp example that Andrew raised and some
thoughts I had shared dealing with how to move forward on information
included in the notices in reference to principle 2.



-------- Forwarded Message --------
Subject: Canada notice-to-notice clarification needed
Date: Fri, 09 Jan 2015 11:13:18 +0530
From: Jyoti Panday <jyoti at cis-india.org>
To: pranesh at cis-india.org >> Pranesh Prakash <pranesh at cis-india.org>,
Elonnai Hickok <elonnai at cis-india.org>
CC: Sunil Abraham <sunil at cis-india.org>

Dear Pranesh and Elonnai,

Please find the link to the latest Michael Geist blog on the Canadian
Copyright Notice and Notice.


He highlights three issues in the recently legitimized notice and notice
system, which in my opinion, adds evidence to and supports the
Principles that we are developing. Could you please clarify the
suggestions I have made following his analysis?

First, is the issue of specifying the content of notices for restriction
of content. The Canadian legislation CMA 2012 lays down clear rules on
the content of these notices, specifically:
they must be in writing and state the claimant's name and address,
identify the material allegedly being infringed and the claimant's right
to it, as well as specify the infringing activity, the date and time of
the alleged activity, and the electronic address associated with the

However, the it does not restrict the ability for rights holders to
include information that goes beyond the statutory minimum.As Geist
points out in his blog, this loophole is being exploited by RightsCorp
and BMG to send demands for payment accompanied by false information on
Canadian law.

Under Manila Principle 2 we state certain bare requirements that content
restriction orders and notices should meet: legal basis, location and
description, certification of good faith, consideration of limitations,
exceptions, defence, contact details of the issuing party or their
agent, standing to issue the notice  etc.

However, we have not recommended that there be reasonable restrictions
on what information is included beyond what is the minimum standard
specified in statute. Without this safeguard rights holders may misstate
liability provisions, as was done in this case with a false liability
cap, and, warning of suspension of user's Internet service.

1. Should we suggest that no information more than that included as
minimum standard should be added? or,

Second, under Principle 1 we recommend that "Intermediaries should not
be required to disclose personally identifiable information of users as
part of an intermediary liability regime without a judicial or
equivalent (?) order."

While this provision is contained under the Canadian law this is not
specified or highlighted in either the notice or by the ISP. This
effectively means, that by omitting this information, rights holders may
falsely instill fear of an expensive lawsuit.

BMG notice featured in Geist's blog states:
"BMG will pursue every available remedy including injunctions and
recovery of attorney’s fees, costs and any and all other damages which
are incurred by BMG as a result of any action that is commenced against

2. Should we be recommending adding more information in the notices
informing users that personal information has not been shared? or,

3. As Geist suggests ISPs should be allowed to add their own information
on the notices clarifying the law?

Third, Principle 3 we recommend:
Intermediaries and governments should provide clear and accessible
explanation of all appeal and counter notice mechanisms and explanation
of applicable penalties for unjustified notices.

The Canadian system is lacking in both these aspects and we could
highlight these as limitations of the NTN that our principles address.
However, in my opinion these are two distinct issues here and may need
to be separated. Conflating them does not distinguish between the rights
of the person posting the content who will appeal and get content put
back, whereas both user and ISP, as is the case of Canada may seek
penalties  from rights holders for unjustified notices.

4. Should this distinction be made clear? How should the appeal
mechanism be related to users-as part of the notice, by ISP, or merely
defined under statute will suffice? Or should we not get that specific
and allow for industry led or other voluntary standards to develop?

The fourth issue that Geist flags off with reference to this particular
notice is that of settlement demands. He calls for regulation
prohibiting settlement demands. Perhaps our recommendation of minimum
standard of a notice should also specify, as it is for the court to
decide if the alleged infringement requires a settlement and to what
extent is the damage notices should not seek settlement. Further, since
most copyrighted works have several stakeholders, a settlement with one
party doesn’t automatically mean that other interested parties are
barred from also seeking settlement.

5. Should we recommend that notices should not seek settlement? How do
we address the issue of multiple notices seeking settlement that may
choke both ISP and user rights?



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